Kuiper v. Lundvall

No. 20093 (Colo. Dist. Ct. July 10, 1973)

The court declares the Colorado Ground Water Management Act of 1965 to be invalid under the Colorado State Constitution insofar as the act relates to ground water tributary to a surface stream. The court rules that the power given the state Ground Water Commission to grant or refuse a permit to drill a well constitutes the effective power to adjudicate a water right, and that this legislative delegation conflicts with the specific constitutional and statutory relegation of that power to the judiciary. The court also finds that the establishment and regulation of "Ground Water Basins" by the Commission without consideration of the tributary nature of those basins may be in conflict with the appropriation principles of Colorado water law. The court orders the state engineer to allow defendant Lundvall to drill an additional well whose yield may be used on whatever portion of defendant's land he chooses subject to existing seniorities and priorities.

Counsel for Plaintiff State Engineer
Ben L. Wright, Jr.
730 Equitable Bldg.
Denver, Colo. 80203

Counsel for Defendant Elmer Lundvall
Al Steinmark
1004 9th Ave.
Greeley, Colo. 80631

Counsel for Defendant Central Yuma County Ground Water Management District
Max Snydal
229 E. Kiowa Ave.
Fort Morgan, Colo. 80701

[4 ELR 20653]

Carpenter, J.

The Defendant, Elmer Lundvall, is the owner of property located in Yuma County, Colorado, which is included within the exterior boundaries of the Northern High Plains Designated Ground Water Basin. Lundvall has three wells located in Section 28, Township 1 South, Range 45 West of the 6th P.M., Yuma County, Colorado, one well being located in each of three quarter sections. Lundvall applied to the Colorado Ground Water Commission for a permit to drill a fourth well in the Southeast Quarter of said Section 28. The Colorado Ground Water Commission denied said application on March 19, 1969. Lundvall offered to reduce the yield on the three existing wells in the section from 1200 gallons per minute to 900 gallons per minute in order to drill a fourth well with a yield of 900 gallons per minute. This request was denied.

In the spring of 1969, Lundvall began construction of a water line from his well in the Northeast Quarter of said Section 28 to the middle of the Southeast Quarter of the same section. The Colorado Ground Water Commission requested the State Engineer to commence an action to permanently enjoin Lundvall from applying any water to the Southeast Quarter of Section 28. 1963 C.R.S. 148-18-9 (g) and (h), gives the State Engineer the following powers:

(g) To commence actions to enjoin the illegal opening or excavation of wells or withdrawal or use of water therefrom, and to appear and become a party to any action or proceeding pending in any court or administrative agency when it appears that the determination of such action or proceeding might result in depletion of the ground water resources of the state contrary to the public policy expressed in this article or might injure vested rights of other appropriators.

(h) To take such action as may be required to enforce compliance with any regulation, control, or order established by the ground water commission as provided for under the provisions of this article.

This action was originally commenced in Yuma County, Colorado, and was transferred to the District Court of Weld County, Colorado on a Change of Venue. Lundvall continued to irrigate in the Southeast Quarter of Section 28, and by his Answer and Counter-Claim requested a preliminary and permanent injunction preventing the State Engineer from shutting off his wells. Lundvall [4 ELR 20654] joined the Central Yuma County Ground Water Management District as a party defendant, under Rule 19, Colorado Rules of Civil Procedure, and a Motion to Add Additional Parties was filed by Lundvall, and this Court permitted the addition of other parties similarly situated. The Cross-Claim by Lundvall against Central Yuma County Ground Water Management District alleged that the District adopted rules and regulations covering the use of underground water wells in the Management District which prevented Lundvall from the irrigation of the Southeast Quarter of Section 28. Lundvall, by his Answer and Counter-Claim, requested a temporary injunction, a permanent injunction, and a declaratory judgment finding that the Colorado Ground Water Management Act of 1965 (1963) C.R.S. Chap. 148, Art. 18, § 1, et seq., as amended) is unconstitutional and that the rules and regulations adopted by the Management District are void and of no effect.

This matter was first heard by this Court on preliminary injunction April 20, 1970, and the matter continued to November 2, 1971 for trial. At the trial the parties, by their counsel, stipulated and agreed that the report of the State Engineer's Office, dated September, 1970, (Plaintiff's Exhibit C-1 through C-10) entitled Geohydrologic and Administrative Facts Relative to the Case of C. J. Kuiper, State Engineer, State of Colorado v. Elmer Lundvall, be submitted to the Court as and for a complete record of the geohydrologic and administrative facts involved in this case.

The issues created by the pleadings and the evidence are as follows:

(1) Is the ground water in question tributary to a natural stream? (2) If the ground water is tributary to a natural stream, does the passage of the Colorado Ground Water Management Act of 1965 (1963 C.R.S., Chap. 148-18-1 et seq.) conflict with Article XVI, §§ 5. and 6. of the Constitution of the State of Colorado? (3) Does the Colorado Ground Water Management Act of 1965 unconstitutionally delegate judicial functions of the district courts to an administrative agency of the executive branch of government? (4) Does the power given by the Colorado Ground Water Management Act of 1965 to the State Engineer and the Colorado Ground Water Commission in effect give them the authority to adjudicate Defendant Lundvall's wells? (5) Does Lundvall have the right to collaterally or directly attack the constitutionality of the Ground Water Management Act?

The question whether the ground waters are tributary is easily answered by the stipulation of the parties and Plaintiff's Exhibit C-1 entitled Geohydrologic and Administrative Facts Relative to the Case of C. J. Kuiper, State Engineer, State of Colorado, v. Elmer Lundvall. This case was originally filed by the parties with the impression that the waters involved would be non-tributary ground waters. However, upon the filing of said Exhibit C-1 and the testimony thereafter adduced, it was obvious that the Plaintiff did not contest the fact that the water was tributary, and his Exhibit C-1 conformed this fact. The Reporter's Transcript of November 2, 1971 provides in part as follows:

"THE COURT: You may proceed.

"MR. WRIGHT: Your honor, we have been attempting to work out somewhat of a stipulation, and I think that perhaps if the court would sit with us and assist us, that probably we can cut down the amount of work that is necessary for this trial, very considerably.

"For instance, I think we would agree that the reporter's transcript of the hearing of the preliminary injunction could be made a part of this hearing, and that would eliminate the necessity of repetition as to many of the documents which are already in.

"Secondly, there has been prepared a report with numerous exhibits, which is entitled "Geo-hydrologic and Administrative Facts Relative to the Case of C. J. Kuiper, State Engineer v. Elmer Lundvall," in which there are exhibits and Appendices A and Appendices B and the maps. I think, basically, that there is an accord that there is no argument about the geo-hydrologic facts. I don't believe there is really an argument about the administrative facts, and I think at this point we could probably have the pertinent facts explained to the court. I would like to see us get to the point where we try to resolve this thing down to about one or two issues to be settled on the law and let the court decide that, rather than our spending four or five days, which I can very easily see that it will take if we go the full route on this, your honor.

"MR. MILLER: We agree with this portion of it. We have prepared a stipulation. Counsel took exception to some of the wording. We started out with counsel stating in open court that none of the water was tributary to the stream, except a very small fraction. The engineers' report found it all tributary, so it slightly changes the theory of the defendant's case.

"THE COURT: Had it been assumed in the past that this is non-triburary water?

"MR. MILLER: The report of the engineers said it is all tributary. I would agree with an informal discussion of the matter in chambers, if that is what counsel is suggesting.

"MR. WRIGHT: We have never taken the position that any of this water is not tributary in the large sense, which the cases have always held, that all water in the state is tributary.

"THE COURT: Court will declare a recess. Attorneys will join the court in chambers.

(Proceedings were held in chambers as follows:)

"MR. MILLER: It it stipulated by the defendants that the report may be admitted which was prepared by the State Engineer's Office and is dated, "Geo-Hydrologic and Administrative Facts Relative to the Case of C. J. Kuiper, State Engineer, State of Colorado, v. Elmer Lundvall, Division of Water Resources, September, 1970," along with three appendices attached and I don't know how many maps.

I will stipulate whatever number of maps there are that go with it. There are six maps referred to in the index. Are we talking about the table of contents?

(Whereupon documents were marked for identification as Exhibits C-1, C-2, C-3, C-4, C-5, C-6, C-7, C-8, C-9, C-10.)"

Plaintiff's Exhibit C-1 at page 16 states as follows:

The water-table contour map (Plate V) shows that ground water moves generally northeasterly through the area of influence. The area of influence is approximately centered over a ground water divide such that Ground water in the northwest portion is tributary to the North Fork of the Republican River and the ground water in the southeast portion is tributary to the Arikaree River. Since both of these river systems have completely eroded away the Ogallala Formation several miles upstream from the State Line, they appear to intercept most, if not all, of the underflow from the area of influence. As observed by Woodward-Clyde-Sherard and Associates (1966) and Reddell (1967), a significant portion of the ground water that is discharged into the North Fork of the Republican and Arikaree Rivers within Colorado is apparently lost to evapotranspiration before it reaches the State Line. (Emphasis supplied.)

At page 28 of Plaintiff's Exhibit C-1 the report states:

The rate of ground water movement in this area of influence is estimated to be approximately 175 to 300 feet per year.

1963 C.R.S. 148-21-3 (3) defines "waters of the State" as follows:

(3) 'Waters of the State' means all surface and underground water in or tributary to all natural streams within the state of Colorado, except waters referred to in section 148-18-2 (3)."

Sub-section (4) defines "underground water:"

(4) 'Underground water' as applied in this article for the purpose of defining the waters of a natural stream, means that water in the unconsolidated alluvial aquifer of sand, gravel, and other sedimentary materials, and all other waters hydraulically connected thereto which can influence the rate or direction of movement of the water in that alluvial aquifer or natural stream. Such 'underground water' is considered different from 'designated ground water' as defined in section 148-18-2 (3).

[4 ELR 20655]

"Tributary ground water" is defined as water flowing beneath the surface that will, if not intercepted, reach and become a part of some natural stream. It is necessary that the general path of such water, whether it is percolating or flowing in a well-defined channel, be reasonably determined and that the stream to which the water contributes be identified." The Medano Ditch Co. v. Adams, Trustee, 29 Colo. 317, 326, 68 Pac. 431 (1902). "Non-tributary ground water has been defined as water which will not reach and become part of some natural stream." McHendrie, The Law of Underground Water, 13 Rocky Mt. L. Rev. 1, 3 (1940): Denver Law Journal, "Symposium Colorado Water Law," page 308, Vol. 47, No. 2 (1970). Colorado recognizes that all underground waters which by flowage, seepage, or percolation will eventually, if not intercepted, become part of some natural stream are subject to the law of appropriation. The City of Colorado Springs, et al, v. Thomas L. Bender, et al, 148 Colo. 458, 366 P.2d 552 (1961), and Denver Law Journal, "Symposium Colorado Water Law," pages 309, 310, Vol. 47, No. 2 (1970).Since the case of Comstock v. Ramsay, 55 Colo. 244, 133 Pac. 1107 (1912), the Supreme Court of Colorado has clearly and consistently held that seepage and percolation belong to the river and thus are subject to appropriation. Thus, a long line of cases has settled the proposition; all underground waters which by flowage, seepage, or percolation will eventually, if not intercepted, become part of some natural stream are subject to the law of appropriation. The City of Colorado Springs, et al, v. Thomas L. Bender, et al, 148 Colo. 458, 366 P.2d 552 (1961); Black v. Taylor, 128 Colo. 449, 264 P.2d 502 (1954); Safranek v. Limon, 123 Colo. 330, 228 P.2d 975 (1951); Dalpez v. Nix, 96 Colo. 540, 45 P.2d 176 (1935).

In the case of In Re German Ditch and Reservoir Company, 56 Colo. 252, 139 Pac. 2 (1914) the contention was made by an applicant for an adjudication of water rights that Dry Creek which commences in Jefferson County and joins the Platte River was not a tributary stream and therefore those who held prior decrees in Water District No. 2, as then defined, could not bring the decree of the German Ditch and Reservoir within the administration of the waters of the Platte River and its tributaries. The Supreme Court held that natural percolating water finding its way to a natural stream is a tributary of that stream. The Court cited McClellan v. Hurdle, 3 Colo. App. 430, 33 Pac. 280 (1893) as follows:

It is probably safe to say that it is a matter of no moment whether water reaches a certain point by percolation through the soil, by a subterranean channel, or by an obvious surface channel. If by any of these natural methods it reaches the point, and is there appropriated in accordance with law, the appropriator has a property in it which cannot be divested by the wrongful diversion by another, nor can there be any substantial diminution. To hold otherwise would be to concede to superior owners of land the right to all sources of supply that go to create a stream, regardless of the rights of those who previously acquired the right to the use of the water from the stream below.

To the same effect in principle are: Buckers Irrigation Compary v. The Farmers' Ditch Company, 31 Colo. 62, 72 Pac. 49 (1903); Bruening v. Dorr, 23 Colo. 195, 47 Pac. 290, 35 L.R.A. 640; Clark v. Ashley, 34 Colo. 285, 82 Pac. 588; Platte Valley IrrigationCompany v. Buckers Co., 25 Colo. 77, 53 Pac. 334; La Jara C. & L.S.A. v. Hansen, 35 Colo. 105, 83 Pac, 644.

A reading of the above cases in connection with the sundry provisions of our statutes will disclose that in dividing the state up into water districts the legislature in using the words "tributary to a natural stream" did not intend their use in a restricted sense, that is that the tributaries themselves should be natural, continuous running streams, but as therein used it indicates that the word "tributaries" is used to include all sources of supply which go to make up the natural stream and which properly belong thereto.(Pages 269, 270)

In the case of L. O. Fundingsland v. The Colorado Ground Water Commission, 171 Colo. 487, 468 P.2d 835 (1970), Justice Pringle in discussing Fundingsland's application for a permit to drill a well on property located in the Northern High Plains Designated Ground Water Basin in Kit Carson County, stated: "the court and the commission derive their authority to pass on the plaintiff's application from 1965 Perm. Supp., C.R.S. 1963, 148-18-1 et seq., (Senate Bill No. 367) which deals with captive ground water . . . ." In the Fundingsland case the Court assumed it was dealing with captive ground water, and there is nothing in the Fundingsland case to indicate any movement of water. 1963 C.R.S. 148-18-2 (3) defines designated ground water:

(3) The term "designated ground water" is that ground water which in its natural course would not be available to and required for the fulfillment of decreed surface rights, or ground water in areas not adjacent to a continuously flowing natural stream wherein ground water withdrawals have constituted the principal water usage for at least fifteen years preceding the date of the first hearing on the proposed designation of the basin; and which in both cases is within the geographic boundaries of a designated ground water basin.

Neither the General Assembly, the State Engineer, the Colorado Ground Water Commission nor the Central Yuma County Ground Water Management District can alter the facts that the water is tributary by arbitrarily fixing an area as a "designated ground water basin," based simply upon a definition as quoted in 148-18-2 (3) above. Whether or not ground water withdrawals have constituted the principal water usage for fifteen years certainly does not affect the tributary nature of the water, nor does the fact that the water is not available for decreed surface rights.

Under the authorities cited herein, and in view of the geohydrologic findings, this court finds that Lundvall's waters are in fact tributary to the Republican can Arikaree Rivers. According to the legal definition of tributary ground water, the waters here involved are not "captive," but if not intercepted do reach a natural stream, and are therefore tributary waters.

II.

Having found that the ground waters in question are tributary to a natural stream, the question then arises whether tributary waters can also be "designated ground water" as that term is used in the Colorado Ground Water Management Act, 1963 C.R.S. 148-18-2 (3).

It is apparent from the definition of "designated ground water" in the Act, and from the philosophy of the Colorado Ground Water Management Act in toto, that tributary waters are not excluded from the provisions of the Act. If tributary waters meet the requirements of 148-18-2 (3) above, then said tributary waters are subject to the jurisdiction of the Colorado Ground Water Commission and the State Engineer. The Act does not deal exclusively with non-tributary ground water or captive ground water. Since the Act applies to tributary ground water, and the facts of this case show that the waters of Lundvall are tributary ground waters, is there any Constitutional provision which would prohibit the administration and control of tributary "designated ground water" by the Colorado Ground Water Commission and the State Engineer?

Article XVI, §§ 5. and 6. of the Colorado Constitution provide as follows:

Section 5. Water of streams public property. — The water of every natural stream, not heretofore appropriated, within the state of Colorado, is hereby declared to be the property of the public, and the same is dedicated to the use of the people of the state, subject to appropriation as hereinafter provided.

Section 6. Diverting unappropriated water — priority preferred uses. — The right to divert the unappropriated waters of any natural stream to beneficial uses shall never be denied. Priority of appropriation shall give the better right as between those using the water for the same purpose: but when the waters of any natural stream are not sufficient for the service of all those desiring the use of the same, those using the water for domestic purposes shall have the preference over those claiming for any other purpose, and those using [4 ELR 20656] the water for agricultural purposes shall have preference over those using the same for manufacturing purposes. (Emphasis supplied.)

In Colorado it is well established that the tributary waters of the state are controlled by the doctrine of prior appropriation. In the case of Strickler v. Colorado Springs, 16 Colo. 61, 26 Pac. 313, 25 Am. Rep. 245 (1891), the Court at page 67 of the decision stated as follows:

The fundamental principle of this system is that priority in point of time gives superiority of right among appropriators for like beneficial purposes. To now say that an appropriator from the main stream is subject to subsequent appropriation from its tributaries would be the overthrow of the entire doctrine.

Other cases holding that priority in point of time gives superiority of right among appropriators for like beneficial purposes are: James v. Barker et al. 99 Colo. 551, 558, 64 P.2d 598 (1937); Ironstone Ditch Company v. Ashenfelter, 57 Colo. 31, 40, 140 Pac. 177 (1914); The Handy Ditch Company v. The Louden Irrigating Canal Company, 27 Colo. 515, 518, 62 Pac. 847 (1900); The Farmers Independent Ditch Company v. The Agricultural Ditch Company, et al, 22 Colo. 513, 533, 45 Pac. 444, 1 Rocky Mt. L. Rev. 178, 195 (1896).

The factors which necessitated the adoption of the Colorado doctrine were distinctly stated by Justice Helm in the well known case of Coffin v. Left Hand Ditch Company, 6 Colo. 443, 10 Rocky Mt. L. Rev. 90 (1882).

The climate is dry, and the soil, when moistened only by the usual rainfall, is arid and unproductive; except in a few favored sections, artificial irrigation for agriculture is an absolute necessity. Water in the various streams thus acquires a value unknown in moister climates. Instead of being a mere incident to the soil, it rises, when appropriated, to the dignity of a distinct usufructurary estate, or right of property.

It should be noted that the Colorado doctrine was the law in the state of Colorado even before the state was admitted to the Union.

Pertinent provisions of the Management Act which reflect the philosophy of the Act, and which conflict with the Constitution and case law of this state are set forth in part below:

148-18-1. Declaration of Policy . . . . While the doctrine of prior appropriation is recognized, such doctrine should be modified to permit the full economic development of designated ground water resources. Prior appropriations of ground water should be protected and reasonable ground water pumping levels maintained, but not to include the maintenance of historical water levels. All designated ground waters in this state are therefore declared to be subect to appropriation in the manner defined in this article. (Emphasis supplied)

1963 C.R.S. 148-18-10 (1) (b), under the "Powers of The Ground Water Commission," states as follows:

To supervise and control the exercise and administration of all rights heretofore or hereafter acquired to the use of designated ground water. In the exercise of this power it may, by summary order, prohibit or limit withdrawal of water from any well during any period that it determines that such withdrawal of water from said well would cause unreasonable injury to prior appropriators; provided, that nothing in this article shall be construed as entitling any prior designated ground water appropriator to the maintenance of the historic water level or any other level below which water still can be economically extracted when the total economic pattern of the particular designated ground water basin is considered; and provided further, that no such order shall take effect until six months after its entry. (Emphasis supplied.)

It is obvious that the Colorado Ground Water Management Act does not follow the doctrine of prior appropriation in that the senior right is not the better right. The paramount right, according to 148-18-10 (1) (b) of the Act, above cited, is the total economic pattern of the basin. The senior right is not entitled to the maintenance of his historic water level. Therefore, Article XVI, § 6. of the Colorado Constitution is in conflict with the Colorado Ground Water Management Act. Where the statute is inconsistent with the Constitution, the statute must fall. City of Fort Collins v. Public Utilities Commission, 69 Colo. 554, 195 Pac. 1099 (1921); Hessick v. Moynihan, 83 Colo. 43, 262 Pac. 907 (1927).

The engineering information stipulated to between the parties (Exhibit C-1) states that the waters underlying Elmer Lundvall's property are tributary waters to a "natural stream." Hence the actions of the State Engineer, the Colorado Ground Water Commission, and the Central Yuma County Ground Water Management District are in conflict with the Colorado Constitution and the Colorado case law and are void and invalid. There is no clear delineation between the various statutes as to what constitutes "designated ground water," "ground water," or "tributary water." If certain lands within the State of Colorado may be defined as "designated ground water basins" simply by a determination of the Colorado Ground Water Commission (1963 C.R.S. 148-18-2), without a determination as to whether the waters are tributary, then such designation is clearly without color of right and is in conflict with other statutes of the State of Colorado (Chap. 148, Art. 21 et seq.), and the Constitution of the State of Colorado (Art. XVI, §§ 5 and 6).

III.

It is well settled in this state that throught the Constitution is not a grant of power to the general assembly, the general assembly is invested with the plenary power for all the purposes of civil government within the limitations placed upon it by the Constitution. People ex rel. Rhodes v. Fleming, et al., 10 Colo. 553, 16 Pac. 298 (1887). Under the Constitution and the separation of powers created by it, the general assembly, and the judicial and executive departments are independent of each other. Moreover, they are superior in their respective spheres. City and County of Denver, et al., v. Lynch, et al., 92 Colo. 102, 106, 18 P.2d 907 (1932).

A delegation by the general assembly of law making power to administrative boards violates Article III of the Colorado Constitution. There is a distinction between conferring the power to make law (standards) and conferring power to prescribe or determine facts upon which the law depends; and a distinction between such standards, and rules and regulations of administrative board proceedings to execute said standards. The first cannot be done. To the last there is no valid objection. Casey v. People, 139 Colo. 89, 336 P.2d 308 (1959). People ex rel Dunbar v. District Court, 129 Colo. 203, 268 P.2d 1098 (1954).

Article VI, § 1, of the Colorado Constitution provides for vestment of judicial powers:

Section 1. Vestment of judicial power. — The judicial power of the state shall be vested in a supreme court, district courts, a probate court in the city and county of Denver, a juvenile court in the city and county of Denver, county courts, and such other courts or judicial officers with jurisdiction inferior to the supreme court, as the general assembly may, from time to time establish; provided, however, that nothing herein contained shall be construed to restrict or diminish the powers of home rule cities and towns granted under Article XX, Section 6 of this constitution to create municipal and police courts.

The Constitution of the State of Colorado at Article VI, § 9. provides for the jurisdiction of district courts:

Section 9. District courts — jurisdiction. — (1) The district courts shall be trial courts of record with general jurisdiction, and shall have original jurisdiction in all civil, probate, and criminal cases, except as otherwise provided herein, and shall have such appellate jurisdiction as may be prescribed by law.

Article III of the Constitution of Colorado provides for the separation of powers:

The powers of the government of this state are divided into [4 ELR 20657] three distinct departments, — the legislative, executive and judicial; and no person or collection of persons charged with the exercise of powers belonging to one of these departments shall exercise any power properly belonging to either of the others, except as in this constitution expressly directed or permitted.

The case of Haverly Invincible Mining Co. v. Howcutt, 6 Colo. 574, (1883), states that judicial power cannot be conferred by consent upon one not clothed therewith in a manner designated by law. Judicialpowers are vested in the courts. The powers so vested cannot be delegated or revested by the General Assembly. In the case of Kerr v. Burns, et al, 42 Colo. 285, 93 Pac. 1120 (1908), the court stated at page 289 of the decision as follows, to-wit:

By article 6, section 2, of the constitution, the district court is given jurisdiction of all causes both at law and in equity. This jurisdiction is broad enough to cover the determination of questions relating to priorities in the appropriation of water from the public streams of the state. The statutes referred to by counsel were adopted for the purpose of enabling parties to adjudicate in one proceeding all such priorities throughout a prescribed district covering, so far as possible, a single natural stream with its tributaries. They do not enlarge or limit the constitutional jurisdiction of the district court in this respect; they simply designate that court as the exclusive tribunal for the trial of such proceedings.

(See also The Broadmoor Dairy and Livestock Co., et al. v. The Brookside Water and Improvement Co., et al., 24 Colo. 541, 52 Pac. 792 (1898)).

Unless permitted by the Constitution, legislatures may not authorize executive or administrative officials, boards or commissions to exercise power essentially judicial in nature or interfere in the exercise of such powers. City and County of Denver, et al. v. Lynch, et al., 92 Colo. 102, 106, 18 P.2d 907 (1932); People v. Swena, 88 Colo. 337, 296 Pac. 271 (1931); South Chicago Coal and Dock Co., et al. v. Bassett, 104 F.2d 522, affirmed 60 Sup. Ct. 544, 309 U.S. 251, 84 L.Ed. 732. Stated differently, powers cannot be given an administrative officer or board to adjudicate private litigation or to hear and determine controversies as to rights. Pitt v. Schrugham, 44 Nev. 418, 195 Pac. 1101 (1921).

It is obvious from the Constitution of the State of Colorado, the cases decided thereunder, and from the absence of any language to the contrary in the Colorado Ground Water Management Act of 1965, that the district courts of the State of Colorado still have jurisdiction to determine questions relating to the priorities of appropriation of water from public streams in this state.

The Water Adjudication Act of 1943 gave the district courts of the State of Colorado jurisdiction to settle "all questions concerning the priority of appropriation of water between owners and claimants of water rights drawing water from the same source within the same water district, and all other questions of law and questions of right growing out of, or in any way involved or connected therewith. . . ." (1963 C.R.S. 148-9-2). Senate Bill 81 (1963 C.R.S. 138-21 et seq.) provides for the establishment of the position of Water Judge in the various water divisions established by said Act. Section 10 of Senate Bill 81 provides that the district courts collectively acting through the Water Judge shall have exclusive jurisdiction of water matters within the division. 1963 C.R.S. 148-21-3 (3) defines 'waters of the state' as follows:

Waters of the state, means all surface and underground water in or tributary to all natural streams within the State of Colorado, except waters referred to in 148-18-2 (3).

The Colorado Ground Water Management Act of 1965 cannot deprive the jurisdiction of the district courts to adjudicate "all questions of law and questions of right" concerning the priority of appropriation of water rights to public streams.

The Colorado Supreme Court in the recent case of C. J. Kuiper, State Engineer, et al. v. Well Owners Conservation Association, et al, Case No. 24725, decided October 12, 1971, in reversing a judgment of the Weld County District Court discussed the Water Right Determination and Administration Act of 1969 as follows:

It is true that the Act does not mention specifically this type of action, but the legislative intent is apparent that the water judges have exclusive jurisdiction of determining the validity of the rules and regulations of the State Engineer. It would be illogical — in fact nearly unthinkable — for the General Assembly to set up a system for the determination of 'water matters' and to provide for the selection of judges skilled in this field of law to preside as water judges, and then turn the determination to a non-water judge of a subject that goes to the very heart of the administration of water.

The rationale in Case No. 24725 would apply to the present case as well. It would be unthinkable for the General Assembly to set up a system for the determination of water rights of tributary water, and then turn the determination of those water rights in a complex subject over to an administrative agency which has the power to take away or confer water rights.

The Colorado Ground Water Management Act of 1965 clearly removes powers and functions from the district courts of the State of Colorado, and vest them in the Colorado Ground Water Commission, the Management Districts and the State Engineer. This clearly cannot be accomplished by legislative enactment.

The legislature specifically vested in the Colorado Ground Water Commission the power to establish the priority of wells within a "designated ground water basin," and then the General Assembly set forth the statutory method to be followed in establishing said priority. However, at no place in said Act did the General Assembly state nor did it intend to abrogate the provisions of the Water Adjudication Act of 1943, or its successor, the Water Right Determination and Administration Act of 1969, vesting jurisdiction in the district courts. Nor could the Colorado Ground Water Management Act of 1965, whether it so intended or not, divest the district courts of the State of Colorado of their constitutional jurisdiction over the waters of this state.

The Water Right Determination and Administrative Act of 1969 (148-21-17 (1)) gives the State Engineer responsibility for the administration and distribution of the waters of the state. However, at sub-section (2) of the same section the referee in each division "shall in the first instance have the authority and duty to rule upon determinations of water rights and conditional water rights and the amount and priority thereof . . ." The Water Adjudication Act of 1943 also gave the district courts of the State of Colorado jurisdiction to settle all questions concerning the priority of appropriation of water.The Colorado Ground Water Management Act of 1965 does attempt to limit the jurisdiction of the district courts to adjudicate all questions of law and of right concerning the priority of appropriation of water rights. By its attempt it violates the Colorado Constitution.

This court cannot find a single case in the State of Colorado where the district courts do not have jurisdiction to hear and determine water priorities, and adjudicate water rights to the tributary waters of the state. The Organic Act of 1861 first established the jurisdiction of the courts of the state of Colorado. Said Act provided that:

. . . the jurisdiction of the several courts herein provided for, both appellate and original, . . . and of the justices of the peace, shall be as limited by law: . . . and the said supreme and district courts, respectively, shall possess chancery . . . and authority for redress of all wrongs committed against the Constitution or laws of the United States, or of the territory, affecting persons or property. . . .

The Constitution as originally adopted by the State, (Article VI, § 11) provided that the district courts should have original jurisdiction of all causes, both at law and in equity. Under said provision the district courts of the state have full and complete jurisdiction over water rights. The Broadmoor Dairy and Livestock Co., et al. v. The Brookside Water and Improvement Co., et al., 24 Colo. 541, 52 Pac. 792 (1898). Other cases on this point are: The Farmers' Union Ditch Company, et al. v. The Rio Grande Canal Company, et al., 37 Colo. 512, 86 Pac. 1042, 1 Rocky Mt. L. Rev. 195; Kerr v. Burns, et al., 42 Colo. 285, 93 Pac. 1120 (1908); People ex rel v. Letford, 102 Colo. 284, 79 P.2d 274 (1938).

[4 ELR 20658]

IV.

The powers conferred by the Colorado Ground Water Management Act to the State Engineer and the Colorado Ground Water Commission in effect give the State Engineer and the Commission the authority to adjudicate water priorities. Under the guise of rules and regulations, and under the authority granted by the Ground Water Management Act, the powers of the judicial branch of government are undermined and usurped.

The state of Colorado's first complete effort to establish control of underground water and management of irrigation wells was the Colorado Ground Water Management Act of 1965. Prior to that time, all the state of Colorado had was a water registration act (Colorado Ground Water Law, 1957, 1963 C.R.S. 148-18-1 et seq.) which simply furnished well information to the State Engineer. Permits under the Colorado Ground Water Management Act of 1965 bestow no water right.

. . . If the State Engineer shall find that there is unappropriated water available for withdrawal by the proposed well and that the vested rights of others will not be materially injured, and can be substantiated by hydrological and geological facts, he shall issue a "permit to construct a well," but not otherwise; . . ." (1963 C.R.S. 148-18-36 (2)).

The authority to deny a permit is in fact a denial of a water right. To tell a man that he does not have a permit to drill a well, but that he still has a water right is ludicrous. A denial of the means of diversion is a denial of a water right. The State Engineer may regulate and administer a water right but he cannot constitutionally deny the appropriation. "There may be a valid appropriation even after all the waters of the stream in its ordinary stage have been appropriated. Such last appropriation entitles the appropriator to the use of the water when not required by his seniors." The Humphreys Tunnel and Mining Company v. Frank, 46 Colo. 524, 105 Pac. 1093 (1909).

Though other appropriations, to the full capacity of the stream during its ordinary flow, were made before plaintiff's rights accrued, this does not prevent him from building a ditch and diverting and using its waters whenever his seniors do not need it. Floods often occur and the natural flow of the stream is thus augmented. No appropriator uses water all the time. It is well known that many streams of this state are over-appropriated, yet appropriators whose rights accrue after the ordinary flow if fully appropriated, have, nevertheless, acquired valuable rights and often enjoy the use of water for their lands, which rights the law protects against trespasses of others. (Page 532)

A denial of a well permit is an adjudication of an appropriator's right to the use of waters. As junior as he may be, there are certainly occasions when the application of water to a beneficial use does not materially affect other senior vested rights. There is no finding of fact in this case, and no evidence presented by the Plaintiff as to whether Lundvall has a junior or senior water right. In any event, Lundvall cannot be denied his right of appropriation. To prohibit Lundvall from the transfer of water from one quarter section to another or to refuse to grant him a well permit is in effect a denial of his right to appropriate water and is therefore without color of right and cannot be denied by the State Engineer or the Colorado Ground Water Commission.

The doctrine of prior appropriation permits great flexibility with regard to the place where water may be used. Indeed, the right to appropriate water and put the same to beneficial use at any place in the state is no longer open to question so long as the change does not interfere with vested rights. Under the case law growing out of the doctrine of prior appropriation it is abundantly clear that Lundvall can use his water whenever he wishes. If he wishes to transport a part of his water from one quarter section to another, this is entirely permissible, if it can be done without injury to other vested rights. Metropolitan Suburban Water Users Association v. Colorado River Water Conservancy District, 148 Colo. 173, 365 P.2d 273 (1961); Pioneer Irrigation Company v. Board of Commissioners, Yuma County, Colorado, 236 Fed. 790 (D. Colo. 1916).

In the absence of legislation to the contrary, we think that the right to water acquired by priority of appropriation thereof is not in any way dependent upon the locus of its application to the beneficial use designed. And ths disastrous consequences of our adoption of the rule contended for, forbid our giving such a construction to the statutes as will concede the same, if they will properly bear a more reasonable and equitable one.

Coffin v. Left Hand Ditch Company, 6 Colo. 443, 449, 10 Rocky Mt. L. Rev. 90 (1882). See also Hammond v. Rose et al., 11 Colo. 524, 19 Pac. 466 (1888).

The Colorado Supreme Court in the recent case of Hall, et al. v. C. J. Kuiper, Colorado State Engineer, Case No. 25687, decided March 19, 1973, held that in the case of a tributary well, the evidence was that the South Platte River was over-appropriated, and the constitutional provisions (Article XVI, § 6) stating that the right to appropriate the waters of the state should never be denied, only applied to the unappropriated waters of the state.It is axiomatic that the waters of the state are used and reused may times over from the time the waters first begin their descent from the Continental Divide until they leave the boundaries of the state. The same waters are appropriated and reappropriated by various water users and thus the maximum utilization of the waters of the state can in part be accomplished. The statutes and case history of the water laws of this state have always held that there is room for one more appropriator. The only question under the priority system is the seniority of that appropriation.

It is a well recognized principle in Colorado that in cases concerning the diversion of water for the same purpose, the first appropriator of the water of a natural stream has a prior right to such water to the extent of his appropriation. A senior appropriator can insist that no junior divert to the senior's detriment water which is tributary to the senior's supply. For example, an upstream junior appropriator diverting water from a tributary of the main stream cannot so reduce the quantity of water reaching the main stream that the downstream senior appropriator is deprived of his full appropriation.The extent of impairment of the senior appropriator's right is the factor to be considered and not the particular location of the junior appropriator's diversion.

Denver Law Journal, "Symposium Colorado Water Law," page 249, Vol. 47, No. 2 (1970).

While the right of a senior appropriator is superior to that of one who acquired his appropriation at a later date, the senior right is not absolute, and junior appropriators are entitled to exercise certain limited rights. For example, an upstream junior need not close his headgate to supply a downstream senior if this action will not benefit the senior. That is, when stream conditions are such that there is no reasonable likelihood that useable quantities of water will be received by the senior appropriator as a result of the junior appropriator's shutdown, the junior appropriator cannot be compelled to cease his diversion. (Page 250)

It is also axiomatic in this state that the district courts of this state, in the exercise of their judicial functions, are the sole and exclusive agency for the determination of a water right. This was recognized by the Supreme Court in the case of C. J. Kuiper, State Engineer, et al. v. Well Owners Association, et al., Case No. 24725, decided October 12, 1971, wherein the Court stated as follows:

It is true that the Act does not mention specifically this type of action, but the legislative intent is apparent that the water judges have exclusive jurisdiction of determining the validity of the rules and regulations of the State Engineer. It would be illogocal — in fact nearly unthinkable — for the General Assembly to set up a system for the determination of 'water matters' and to provide for the selection of judges skilled in this field of law to preside as water judges, and then turn the determination to a non-water judge of a subject that goes to the very heart of the administration of water.

The Hall case was filed in the Larimer County District Court, [4 ELR 20659] rather than the Water Court for Water Division No. 1. Senate Bill 81 gives the Water Courts the exclusive jurisdiction for determination of all water matters. 1963 C.R.S. 148-21-10 (1) provides as follows:

(1) There is established in each water division the position of water judge of the district courts of all counties situated entirely or partly within the division. Said district courts collectively acting through the water judge shall have exclusive jurisdiction of water matters within the division, and no judge other than one designated as a water judge shall act with respect to water matters in that division. Water matters shall include only those matters which this article and any other law shall specify to be heard by the water judge of the district courts. (Emphasis supplied.)

The jurisdictional aspect of the decision was never raised by either of the parties or by the court.

The granting of a permit by the State Engineer does not bestow a water right. An appropriation can only be made by diversion and application of the water to a beneficial use. Under the guise of a permit, the State Engineer, rather than the courts, has the power to deny the means of diversion. The State Engineer under Senate Bill 81 has no authority other than to administer water. The Water Court has the exclusive right to grant an adjudication. The provision in the 1965 Ground Water Management Act (148-18-36), which provides for the granting of permits by the State Engineer, should apply only to those waters in designated basins. The later enactment in the Water Right Determination and Administration Act of 1969. The 1969 Act gives the Water Court exclusive jurisdiction for determination of a water right, and the State Engineer, on the other hand, is only given the authority to administer the waters of the state. The State Engineer has no authority to interfere with what is an exclusive judicial function.

In the instant case, although the waters are tributary, they are not available for use by other appropriators. Exhibit C-1 provides as follows:

The water-table contour map (Plate V) shows that ground water moves generally northeasterly through the area of influence. The area of influence is approximately centered over a ground water divide such that ground water in the northwest portion is tributary to the North Fork of the Republican River and the ground water in the southeast portion is tributary to the Arikaree River. Since both of these river systems have completely eroded away the Ogallala Formation several miles upstream from the State Line, they appear to intercept most, if not all, of the underflow from the area of influence. As observed by Woodward-Clyde-Sherard and Associates (1966) and Reddell (1967), a significant portion of the ground water that is discharged into the North Fork of the Republican and Arikaree Rivers within Colorado is apparently lost to evapotranspiration before it reaches the State Line. (Page 16.) (Emphasis supplied.)

Since the ground waters underlying Lundvall's wells are not available for appropriation, the facts in this case do not conflict with the facts as set forth in the case of Hall, et al. v. C. J. Kuiper, Colorado State Engineer, supra. There is no basis for the denial of a permit by the State Engineer even should the decision in the case of Hall, et al. v. C. J. Kuiper, Colorado State Engineer be construed as a complete change in the construction of our water laws.

It is not necessary for Lundvall to comply with an unconstitutional act in order to contest the legality of that act. Where the statute is void, compliance therewith is not required. 16 Am Jur 2d, Constitutional Law, § 177, p. 402 (1964).An unconstitutional act can be attacked either collaterally or directly. Whitten v. Colt, 153 Colo. 157, 358 P.2d 131 (1963). The question whether tributary waters may be included within the boundaries of a designated basin was never determined at the time the Ground Water Basin was established. The only criterion necessary to establish a basin are those as set forth in the Act and in particular in accordance with 1963 C.R.S. 148-18-5. Whether or not "designated ground water" would be available to and required for the fulfillment of decreed surface rights, or whether ground water has constituted the principal water usage for at least fifteen years, are the primary requisites for creating "designated basins." The tributary nature of the water is apparently not considered, nor is it an issue at the time of the creation of the designated basin. Under the Ground Water Act it is not necessary to determine whether or not the water is tributary. There can be no collateral attack on an issue which was never raised. If the Act is in fact unconstitutional, Lundvall's Answer and Counter-Claim do not constitute a collateral attack, but constitute a direct attack upon the Act in the only forum available to him.

VI.

The question of the constitutionality of the Ground Water Management Act as applied to captive or non-tributary ground water is not an issue in this case since the agreed statement of facts shows that the water is in fact tributary. Obviously Article XVI, § 5 of the Colorado Constitution applies to waters of public streams, and it is conceivable that the State through the exercise of its police powers can set up a separate system of appropriation for non-tributary waters. There is a conflict of opinion on this matter. The Colorado Supreme Court in Whitten v. Colt, 153 Colo. 157, 358 P.2d 131 (1963), quoted a distinguished member of the bar of this state, Mr. William R. Kelly, as follows:

It is submitted that the basis should not be, and is not, based on priority of diversion. The landowner has property in the water in his soil. It is a vested right which cannot be taken away be mere legislation. It is subject only to the reasonable use doctrine. If the ground water is in motion so as to be tributary to a natural stream, or part of the stream table, it has always been subject to priorities of appropriation on the natural stream. But unless it is tributary to the natural stream, it is not subject to the law of appropriation.

However, since the question of the constitutionality of the Ground Water Management Act as applied to non-tributary waters is not material to this case, the court makes no finding thereon.

Since the finding of this court is that the Ground Water Management Act is unconstitutional for the reasons that the Act conflicts with Article XVI, §§ 5 and 6 of the Colorado Constitution; unconstitutionally delegates judicial functions of the district courts to an administrative agency; and has the effect of giving the State Engineer and the Colorado Ground Water Commission the power to adjudicate an individual's wells; the court determines that any discussion as to the retroactive effect of the Ground Water Management Act as applied to pre-existing water rights and decrees is not material to this case and can add nothing further to the rights of these parties.

Therefore, being fully advised in the premises, the court ORDERS, ADJUDGES, AND DECREES AS FOLLOWS:

1. That the court's statements, findings of fact, and conclusions of law asabove set forth in the preceding pages be, and they are hereby made a part of this decree and are incorporated herein as though fully set forth herein.

2. The Colorado Ground Water Management Act of 1965 (1963 C.R.S. Chap. 148, Article 18, § 1, et seq.) is unconstitutional and in violation of Article XVI, §§ 5 and 6 of the Constitution of the state of Colorado insofar as said Act applies to tributary ground water.

3. The Colorado Ground Water Management Act of 1965 (1963 C.R.S. Chap. 148, Article 18, § 1, et seq.) is unconstitutional in that it delegates judicial functions to an administrative agency of the executive branch of the government.

4. The Colorado Ground Water Management Act of 1965 (1963 C.R.S. Chap. 148, Article 18, § 1, et seq.) is unconstitutional in that it bestows powers upon the State Engineer and the Colorado Ground Water Commission to grant or refuse a permit to drill a well thereby giving them, in effect, the authority to adjudicate a water right.

5. That the Plaintiff, C. J. Kuiper, State Engineer, State of Colorado, and the Defendant, Central Yuma County Ground Water Management District, be and they are hereby permanently enjoined [4 ELR 20660] and restrained from interfering with the use and application of the ground waters of Defendant, Elmer Lundvall. The State Engineer, State of Colorado, is further ordered to provide Defendant, Elmer Lundvall, with a well permit on said Southeast Quarter, Section 28, Township 1 South, Range 45 West of the 6th P.M., Yuma County, Colorado, since there has been no showing from the facts of this case that an additional well will in any manner effect the vested rights of any senior appropriator.

The court grants the Plaintiff and Defendants, Central Yuma County Ground Water Management District, ten days from the date of the entry of this decree to file motions for new trial in accordance with Rule 59, Colorado Rules of Civil Procedure.